R v Dunn

[2019] ACTSC 75

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Dunn

Citation:

[2019] ACTSC 75

Hearing Dates:

31 January 2019; 21 March 2019

DecisionDate:

22 March 2019

Before:

Loukas-Karlsson J

Decision:

See [51].

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – delay – application of Verdins principles – plea of guilty – offences in custody – totality

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 72

Criminal Code 2002 (ACT) s 404

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Choi v R [2007] NSWCCA 150
Hili v the Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
R v Brown [2017] ACTSC 284
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Martin [2017] VSCA 291; 20 VR 14
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Pham [2015] HCA 39; 256 CLR 550
R v Raeyers [2015] ACTSC 134
R v Todd (1982) 2 NSWLR 517
R v Verdins [2007] VSCA 102; 16 VR 269

R v Wrigley [2015] ACTSC 114

Parties:

The Queen (Crown)

Malcolm Dunn (Offender)

Representation:

Counsel

Mr C Wanigaratne (Crown)

Ms H Hayunga and Mr S McLaughlin (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 265 of 2018

LOUKAS-KARLSSON J

Introduction

1. On 30 July 2018, Malcolm Dunn (the offender) pleaded guilty to an offence of arson (CC2018/618) contrary to section 404(1) of the Criminal Code 2002 (ACT).

1. The maximum penalty for the offence is a fine of $225,000, 15 years of imprisonment, or both.

Agreed Facts

1. The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle.

1. In short summary, on 14 April 2017, while the offender was a prisoner at the Alexander Maconochie Centre (AMC) in Hume, the offender set fire to the bedding of his cell.

1. The cost of repair to the cell totalled $2,538.20

Objective Seriousness

1. Counsel for the offender submitted that although arson is always a serious offence objectively, the particular facts of this case, including moral culpability, render the offence at the lower end of the scale of objective seriousness. Counsel submitted that the risk to persons and property was low, and that the arson took place in a high security environment with officers experienced in dealing with crisis situations nearby. Further, the fire was extinguished without the assistance from the fire brigade.

1. The prosecution made submissions in accordance with R v Brown [2017] ACTSC 284 (Brown). The prosecution submitted that the fact that the fire did not start or spread quickly is no particular consolation, given that materials that do not burn readily may release dangerous gases, which may be particularly dangerous in confined spaces such as cells at the AMC.…